Saturday, April 18, 2009

Here is the rest of the story....

In this morning's Springfield Republican Local section there was a short item about a lawsuit between the Town of Longmeadow and a Longmeadow homeowner involving a "stone wall" zoning bylaw issue that according to court records has been in litigation since 2005.


Here is a quote from yesterday's ruling by the Massachusetts State Court of Appeals...
Background facts and proceedings
"We summarize the essential and undisputed facts. The plaintiff's two-family residence sits on a six-sided corner lot at Longmeadow Street and Fernleaf Avenue in Longmeadow. The front and side yards of the lot are maintained as lawn space; the angled strip of back yard is heavily wooded. In 2004, the plaintiff constructed an approximately two-foot high, L-shaped stone wall on his front and side yards, adjacent to Longmeadow Street and Fernleaf Avenue. Bordering streets are heavily trafficked and the plaintiff constructed the wall to provide an enclosed play area for his tenant's children. As the parties agreed and the judge found, "the wall, at its closest points, is approximately seventy feet from Longmeadow Street and forty feet from Fernleaf Avenue. The wall does not interfere with drivers' visibility from either street." Construction was nearly complete when the town's building commissioner notified the plaintiff that the fence was in violation of art. IV, § K, of the by-law because it was within the primary setback of the residence. After receiving the notice, the plaintiff briefly ceased construction but thereafter completed construction of the wall and then applied for a variance to allow it to remain in place. The board denied the application, and the plaintiff appealed to Superior Court, pursuant to G.L. c. 40A, § 7. Prior to commencement of the trial, his counsel requested a ruling that "the evidence supports a finding that the Zoning Bylaw can reasonably be interpreted to allow the stone wall as constructed without a variance."

Yesterday's Massachusetts Court of Appeals ruling: "Because the plaintiff's wall is not nearer than forty feet to the line of either street upon which his lot fronts, he is entitled to build his wall as of right and a variance is not necessary."

I suspect that this lawsuit has cost the town of Longmeadow a significant amount of money. As I read the court ruling it seemed that the town's zoning bylaw had some significant language and clarity issues (from yesterday's court ruling- "The by-law is not a model of clarity.")

The Town of Longmeadow lost the initial contest in Massachusetts Superior Court wherein the judge determined that "the board's denial of the variance was unreasonable."

Given that stone walls are a key part of the New England landscape and this particular stone wall fit very nicely into its surroundings... one would guess that it has been there for a long time.

It seems that this entire episode was a waste of the town precious financial resources and a variance should have been granted to the homeowner.